Jersey Unreported Judgments

[2006]JCA078A

COURT OF APPEAL

19^th May 2006

Robert Joseph Franey

Henry Joseph MacAlinden

v

The Attorney General

Applications for leave to appeal against the sentences passed by the Superior Number of the Royal Court on 2^nd February 2006 on guilty pleas to:

Count 1:            Being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug contrary to Article 61(2) (b) of the Customs and Excise (Jersey) Law, 1999.

 

S. M. Baker, Esq., Crown Advocate

Advocate C. M. Fogarty for Franey

Advocate M. L. Preston for MacAlinden

 

jUDGMENT

THE PRESIDENT:

Introduction

1.        The applicants were jointly indicted with Sarah Jane Hubbard and Julie Sharp.  The first count in the indictment charged the applicants and Sharp with being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999.  The second count charged Hubbard with being concerned in the supply of a controlled drug contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law 1978.

2.        The prosecution arose out of the seizure of 139.21 grams of heroin which had a wholesale value in Jersey of between £23,472 and £31,296 and a street value of between £46,944 and £70,416.  The circumstances of the importation were that Franey and Sharp travelled by car together from Liverpool to Weymouth from where they proceeded to Jersey by ferry as foot passengers.  Sharp had the drugs concealed inside her.  Franey and MacAlinden were in contact and as a result the drugs were handed over to MacAlinden by Franey in a car owned and driven by Hubbard.  The Superior Number of the Royal Court sentenced Franey to 8 years' imprisonment, MacAlinden to 7 years and Sharp to 4 years.  The disposal of Hubbard's case is not relevant to these applications by Franey and MacAlinden for leave to appeal against their sentences.

Franey

3.        Advocate C M Fogarty appeared for Franey and we are grateful to her for her detailed submissions, both written and oral.  It is not necessary to set them all out.  It emerged at the hearing that there were really two complaints.  First, that the Royal Court's determination of Franey's sentence had been coloured by two allegations made against him by Sharp which had neither been admitted by nor proved against Franey.  Secondly, that Sharp had received credit for being prepared to give evidence against Franey as to his role whereas Franey, who was prepared to give evidence against Sharp as to her role, had not.  From these assertions we were asked to conclude that Franey suffered a justifiable sense of grievance by reason of the disparity between his sentence and that of Sharp and to remedy that sense of grievance by reducing Franey's sentence.

4.        One of the two allegations made by Sharp was that she had been recruited by Franey and the Crown indicated at the sentencing hearing that this was accepted.  The other was that Sharp feared violence from Franey and at the beginning of the sentencing hearing Crown Advocate S M Baker, who appeared for the prosecution in the Royal Court and in this Court, made reference to Sharp sitting behind her counsel "due to a fear of violence by Franey towards her."  Although in delivering the sentencing remarks relating to Sharp in the Royal Court the Commissioner, Mr F C Hamon OBE, made no mention of Sharp being recruited by Franey, he did advert to "threats of violence in your life recently."

5.        A court sentencing a number of co-defendants is often presented with discrepancies and conflicts between their respective roles in a joint enterprise.  It is essential that in respect of a particular defendant the sentencing court takes into account only those factors which may properly be attributed to that defendant.  As far as the assertion that Franey recruited Sharp is concerned while it was made clear that this was accepted by the Crown - with the implication that it should be taken into account in Sharp's favour - there was no suggestion that the Crown was inviting the Royal Court to have regard to this factor as against Franey.  Furthermore we are satisfied that there is no realistic possibility of the Royal Court having fallen into error in this respect.  The Commissioner has long experience of dealing with criminal cases.  He would have been alert to ensure that the Jurats did not take this factor into account when considering Franey's sentence and we observe that the sentencing remarks pertaining to Franey make no reference to him having recruited Sharp.

6.        As to Sharp's fear of violence at the hands of Franey, it was not suggested to the Royal Court that this should be taken into account in fixing Franey's sentence.  This is hardly surprising as it would have been totally irrelevant to that process.   Obviously, this would have been apparent to the Commissioner and he would have made this clear to the Jurats had there been any possibility of the Jurats being influenced by it.  Once again, there is no mention of this factor in the sentencing remarks pertaining to Franey and we are satisfied that Franey was not prejudiced in any way by the reference at the hearing to Sharp's fear.

7.        As to the offer by Sharp and Franey to give evidence against each other, we note that although it is clear that Sharp made her offer prior to being sentenced this was not the case with Franey.  His offer only emerged after it became apparent that Sharp had made her offer and that she had benefited from it and after they had both been sentenced.  If Franey had genuinely wished to assist the prosecution this ought to have been made clear to the Crown sufficiently in advance of the sentencing hearing to have been of possible value.  His offer, even if genuine, could not have been of any value after the sentencing process had been completed and Franey cannot derive any benefit from it.

8.        In our view, the difference between the sentences imposed on Sharp and Franey is readily explicable by reference to the factors relating to each defendant which were before the Royal Court.  In particular we would confirm that it was entirely appropriate for the Royal Court to have assessed Franey's role in the importation as having been significantly greater than that of Sharp who was correctly characterised as a courier.

9.        The test of whether a defendant has a justifiable sense of grievance in respect of the sentence imposed on him and that imposed on another person is an objective one - viz, whether a reasonable person informed of all the relevant circumstances would so conclude.  Applying this test in this case we are satisfied that, whatever sense of grievance Franey may have, it is not justified.  Accordingly, we refuse this application for leave to appeal.

MacAlinden

10.      In its conclusions, the Crown moved for a sentence of 7 years' imprisonment.  In the event, this was the sentence the Royal Court imposed, but it did so by adopting a higher starting point than that proposed by the Crown and by making a greater allowance for mitigation.

11.      Advocate M Preston, who appeared for MacAlinden, contended that there was no justification for the Royal Court increasing MacAlinden's starting point from 11 to 12 years.  Twelve years was the starting point proposed by the Crown for Franey and adopted by the Royal Court.  Mr Preston argued that Franey's role was patently greater and that, therefore, a lower starting point ought to have been adopted in respect of his client.

12.      The sentencing remarks indicate that the Royal Court found itself unable to differentiate between MacAlinden and Franey.  The Court had no doubt that MacAlinden was also deeply involved in what it correctly described as "this filthy trade", and referred to him knowing where and when to meet Franey, which appears to be a reference to MacAlinden having contact with who the Crown described as "the ultimate organiser" in Liverpool.

13.      In our opinion, the sentencing remarks do not explain adequately how the Royal Court came to the conclusion it did as to the equivalence between the roles of MacAlinden and Franey.  However, it does not necessarily follow from this that that conclusion is to be reviewed by this Court; we must first consider whether, in the light of all the information available to the sentencing court, the Superior Number were entitled to take the view they did and when doing so we must afford the Royal Court a wide margin of appreciation.

14.      Mr Preston conceded that MacAlinden as well as Franey was in touch with the ultimate organiser in England, but argued that Franey's close proximity in geographical terms was an important distinction.  He also drew attention to the significantly greater benefit in money and money's worth that Franey was to receive as indicative of his deeper involvement, and he sought to rely on MacAlinden's assertion that he thought that the quantity of drugs to be imported was very much less than it actually was.

15.      We do not think that any of these factors can be regarded as indicative of any significant difference in the roles of Franey and MacAlinden.  However, we think that when the relevant evidence is examined the conclusion that Franey's role was somewhat but significantly greater than that of MacAlinden becomes inescapable.

16.      It can be said, as the Crown argued, that Franey organised the England end of the importation and that MacAlinden organised the Jersey end.  But Franey's role clearly went beyond this.   He was involved in the arrangements for his trip from the mainland to Jersey which resulted in the importation.  He accompanied the courier from Liverpool to Jersey.  Once in Jersey he was responsible for the safe delivery of the drugs to MacAlinden.  It is true that MacAlinden organised and participated in the collection of the drugs from Franey and obviously he was then going to do something with them in furtherance of criminal enterprise.  There was no evidence as to precisely what.  But nevertheless it seems to us to be clear beyond peradventure that his role was less than that of Franey and that this ought to have been reflected by the Royal Court in its choice of starting point. 

17.      In the circumstances, we give MacAlinden leave to appeal.  Reducing his starting point to 11 years and deducting the 5 years which the Royal Court allowed for mitigation, reduces the sentence to 6 years.  We substitute this sentence for the sentence imposed by the Royal Court.

Authorities

Customs and Excise (Jersey) Law 1999.